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Access to justice and the COVID-19 pandemic: Compendium of Country Practices

25 September 2020

This Compendium of Country Practices focuses on the immediate and medium-term consequences of the COVID-19 crisis for justice systems and their users. It gathers good practice examples from across the globe that have aimed to support justice systems in maintaining service provisions even during lockdowns, protecting those in the most vulnerable positions and undertaking remarkable innovations as a result of the crisis.

ACCESS TO JUSTICE AND THE COVID-19 PANDEMIC © OECD/ LAW & JUSTICE FOUNDATION OF NEW SOUTH WALES 2020  Compendium of Country Practices

Access to Justice and the COVID-19 crisis

Changes are ensuing in justice systems at an unprecedented speed in order to adapt to the new reality of the unfolding crisis, often with short time for reflection on the broader implications underpinning each policy. In facing the path to recovery and to aid governments in shaping “the new normal” through learning from peer countries, this note represents a Compendium of country practices collected through a targeted OECD Call for Evidence to gather justice innovations from government policies and civil society projects.8 It also includes country practices discussed during the OECD’s Global Virtual Roundtable on Access to Justice: the Impact of COVID-19, held on April 28, 2020. The Compendium is an integral part of the OECD’s Policy Brief on the Impact of COVID-19 on Access to Justice, which presents the key Lessons drawn from the good practices examples contained in this Compendium. The identified country practices have been analysed through the lens of the OECD’s criteria for people-centred legal and justice services9 in a forward- looking manner, to explore their implications for future use and their potential for justice systems. While meaningful evidence on the impact of the measures, in particular on what works and for whom, still needs to be collected, these practices and examples may prove useful across many different systems. They also demonstrate a capacity of the justice systems to adapt to change and adopt innovative approaches with a people-centred lens.

Importantly, in positioning the justice systems to support the crisis recovery process, the highlighted practices have a potential to lower, if not eliminate, the usual barriers to accessing justice (e.g., financial cost, time and the complexity of justice systems to geographical distance, lack of legal capability and language skills), which have been heightened in the current context (due to lockdown measures and decreased economic means, among the other exacerbated vulnerabilities – see Brief). At the same time, the Compendium also highlights some of the risks, barriers and challenges when considering current justice innovations through a people-centred approach. Risks have been identified to ensure accessibility of the new measures to vulnerable and marginalised groups, who may be affected by lack of connectivity, skills or worsening economic situations; and to ensure due process rights such as a fair and public trial.

Ensuring availability and accessibility of justice

Continuity of basic legal services

The most pressing need that justice systems have been facing during the crisis thus far has been to ensure the availability of justice services despite the constraining social distancing, or even complete lockdown, measures. Across most systems, non-urgent trials have been postponed to later dates, in many cases also suspending procedural and enforcement action deadlines. In the case of some systems, for example in

7 The note serves as an integral part of the Brief on the Impact of COVID-19 on Access to Justice, prepared jointly by the OECD and the Law and Justice Foundation of New South Wales. The call for evidence took place under the umbrella of the OECD Observatory for Public Sector Innovation. 8 Criteria as described in the Equal Access to Justice for Inclusive Growth- Putting People at the Centre (OECD, 2019) Report. They are the following: availability, accessibility, prevention, proactivity and timeliness, appropriateness and responsiveness, empowerment, equality and inclusion, outcome focus and fairness, collaboration and integration, effectiveness and evidence-based planning.

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Belgium and Lithuania, processes have been transferred when possible into a written procedure. In Chile, a new law has established a judicial regime of exception for judicial processes and terms and use of legal tools, taking into account the impact of COVID-19. Prevalent suspensions and exceptions will entail a significant caseload in the future, for which countries will have to be prepared in the medium to long term to avoid a collapse of the courts.

The immediate challenge being faced by justice system therefore revolved around ensuring availability of justice adjudication for those cases that are urgent and cannot be suspended. To tackle this need, technological means have been crucial to sustain legal work, in particular through the creation of “online courts” (See Box 1).

Box 1. The move towards virtual justice

Establishment of online courts At an unparalleled speed, many courts around the world have started transitioning into online hearings, many of them for the first time. The home page of Remote Courts Worldwide (HMCTS, Society for Computers and Law, the UK LawTech Delivery Panel, 2020[97]), a joint project of several institutions led by the UK court system and Professor Richard Susskind, illustrates that such quick change in how courts deliver services is occurring on a truly worldwide scale. It is the case of Portugal, Greece, Latvia, Slovenia ([76]), Italy ([77]), Israel ([23]), Switzerland ([78]), Romania ([79]), Spain ([101]), Peru ([102]), Brazil ([80]), UAE ([81]), Poland ([3]), China ([82]), United Kingdom ([108]) and the US ([83]) among others. In Ireland, participants could join a Pexip video conferencing session from other video streaming services including Skype, Zoom, Cisco and Teams, without the requirement that all parties use either the same app or a managed integration tool to connect ([84]). In Argentina, using the Webex platform enabled judges to conduct hearings without participants having to download any software while remaining secure. Some countries, including Chile and Malaysia have been able to facilitate a live broadcast of online trials to ensure public access to hearings ([85]). In Mexico, the Supreme Court of Justice started using technological tools to provide justice to Constitutional issues, for example allowing remote distance voting of matters pertaining the capacities of the Tribunal, as well the so-called Judicial Television Network through which the Supreme Court is celebrating sessions of major interest by remote access with a list of matters which are analysed and voted on a weekly basis ([114]). In Ireland, online means are now being used not only for urgent, but for regular trials when suitable, and they have enabled video-link appearances from prisons for all people currently in custody ([31]).

What is not done virtually Some countries have limited the matters that can be treated remotely, for security reasons or due to human rights considerations. In Portugal, urgent acts and procedures in which fundamental rights are at stake are still being carried out in person (urgent protection of children, procedural acts and trial of imprisoned defendants) ([5]). In South Korea, the new reform bill for Civil Procedural Rules for video conferencing legally supports the use of scope of video conferencing to the pre-trial conference and pre-trial hearing, only after both parties’ consents for pre-trial hearing, but for security and integrity reasons, it is not allowed for the trial itself ([115]). In Mexico, in-person trials have not been suspended for: i) family issues; ii) violence; iii) legal protection for minors, children and women; iv) any irreparable damage, amongst other legal issues considered as urgent, including several “amparo” (constitutional rights) requests ([114]). In Israel, important personal testimonies cannot be given virtually (Ministry of Justice, Israel, 2020[23]).

ACCESS TO JUSTICE AND THE COVID-19 PANDEMIC © OECD/ LAW & JUSTICE FOUNDATION OF NEW SOUTH WALES 2020  Something that will need to be decided in the future if remote trials are mainstreamed is whether use of technological means are to be decided by agreement of the parties, by one party, or by the adjudicating judge. In Israel, while at the moment agreement of the parties is required, there is a new proposed law that will allow judges to decide if the hearing (as long as it does not include a testimony) should be done via technological means, without the requirement of the parties’ consent, although such measure will only stay valid while required by the COVID-19 circumstances.

Development of recommendations and best practices Several systems are already developing guidelines on how to conduct online trials effectively. Lithuania’s Judicial Council has issued recommendations to the Chairpersons of the Courts regarding the organisation of work in their respective courts (Lithuanian Courts Judicial Council, 2020[99]). Ontario’s Court System and the UK government have released best practices and guidelines for remote hearings (Superior Court of Justice of Ontario, 2020[100]) (HMCTS, 2020[107]).

According to Hon. Judge Casas from the Criminal Court n. 10 of Buenos Aires (Argentina), in order to conduct an effective and responsive remote hearing you need: 1) A video system with acceptable safeguards to protect personal data of the parties involved in each case. Enable the participants to join via their web browser and without the need to pay for or install any software. 2) Contact parties and people involved in advance to make sure they have the necessary elements in place. 3) Design and provide a simple guide on how to connect in order to avoid unnecessary delays.

In parallel to the move towards virtual courtrooms, some countries have been taking steps to adopt effective electronic storage systems to file information about cases, in order to reduce paper dependence and waste (hence, good for the environment), but also to ensure timely presentation of and access to documents related to a case. For example Qatar has encouraged increased use of eCourt, its electronic case management system which allows access to case parties as well as the judicial staff (The Peninsula, 2020[1]). Similarly, the United Arab Emirates has been able to extend use of their long-existing electronic case management system and online courts, noting that the cost they have endured for implementing the system has lowered considerably over the years. In Mexico, all rulings are being duly notified via electronic platforms, and the Office of the Prosecutor General of the Republic has enabled remote investigations, using email and telephone to obtain useful information for investigations, as well as VPN to enter the institutional system remotely (Office of the Prosecutor General of the Republic of Mexico, 2020[2]). Poland is increasing use of its electronic platform ePUAP (Ministry of Justice, Poland, 2020[3]). It will be relevant in this case to invest in cybersecurity measures to ensure that sensitive personal data is protected.

To support accessibility of digital services, in Canada, an innovation has been developed to tackle this issue focused on self-represented individuals who are unfamiliar or uncomfortable with technology. They assist those who are involved in a justice related matter and require to use Skype, Zoom or other video- conferencing tools, to receive a telephone call from an intermediary who is responsible for assisting to familiarise the individual with technology by walking them carefully through the steps required to access and use the technology. Another pilot project Canada is exploring is to involve community librarians in providing basic guidance into legal procedures and legal technology, drawing on the relationship of trust built between citizens and themselves (Ministry of Justice, Canada, 2020[4]). Portugal is also ramping up

ACCESS TO JUSTICE AND THE COVID-19 PANDEMIC © OECD/ LAW & JUSTICE FOUNDATION OF NEW SOUTH WALES 2020 the use of regular, as opposed to smart, telephones, as well as mobile vans that take advisors through to remote and impoverished rural areas in the interior of the country, to reach citizens who do not otherwise have access to remote technology (Ministry of Justice, Portugal, 2020[5]).

However, the need for availability does not stop at delivery of formal court services, but should also consider a full range of legal services to fulfill citizen needs. Innovative ways to enhance legal service provision through technology could be to ensure the effectiveness of online identity verification, validity of electronic signature of legal documents for all parties10, and the mainstreaming of online or telephone public services which would usually be done in person, such as civil registry procedures for deaths, as has been implemented in the United Kingdom11. Also in the UK, the Office of the Public Guardian has published specific guidance for people to obtain Lasting Power and Attorney (LPA) and Executive Power of Attorney (EPA) during the pandemic (United Kingdom Government, 2020[6]). In Portugal, the Council of Ministers approved an experimental regime for the realisation of authentic acts, terms of authentication of private documents and signature acknowledgments through the Internet. This experimental regime will allow record-keepers and registry officers, notaries, lawyers and solicitors to carry out these acts via videoconference (Ministry of Justice, Portugal, 2020[5]). In Chile, the Civil Status and Identification Service, a public institution part of the Ministry of Justice and Human Rights, has promoted the use of a unique password called “Clave Única”, an API (Application Programming Interface) that allows citizens, in a remote way, to make 348 requests related to 158 institutions completely online. Finally in Poland, the Ministry of Justice runs a website called Stop Uprowadzeniom Dzieci (Stop Child Abduction), through which electronic applications when a child goes missing (which significantly speeds up the proceedings) can be submitted (Ministry of Justice, Poland, 2020[3]).

Alternative resolution methods (ADRs), such as mediation, have also been benefiting from online service provision. For example, Canadian and Mexican mediators are carrying out employment and civil mediations through Zoom and are considering expanding into small court claims (Office of the Prosecutor General of the Republic of Mexico, 2020[2]) (Rose, 2020[7]). In Portugal, new dematerialised channels for the ADR have been created to deliver their service to citizens and enterprises (Ministry of Justice, Portugal, 2020[5]). The use of video-call, video-conference, email and telephone is now possible for all participants. Similarly in Colombia, Conciliation (for family issues) and Arbitration Centres have stayed open remotely to keep working during confinement periods and support vulnerable groups, SMEs and entrepreneurs st (Ministry of Justice and Law, Colombia, 2020[8]). In Poland, from January 1 2020 citizens can use free mediation in free legal aid points, and the government is now working on providing this service remotely (Ministry of Justice, Poland, 2020[3]). Online ADR methods have been increasingly used as a tool to solve disputes in the midst of the lockdown measures without the need to wait until they are lessened. In building the medium term scenario for justice services, promoting a continued use of ADR could lower the backlog and duration of cases courts will face when they are back in full operation, providing more effective access to justice to both the parties of those disputes and the ones in need for court resolutions. In Chile, a free mediation service for contract breaches related to COVID-19 has been established by Santiago’s chamber of commerce (see Box 2).

Box 2. Pro bono online mediations established in Chile for contractual disagreements

10 For a recent review of where electronic signatures are currently considered valid around the world, see this guide by Clifford Chance (Clifford Chance, 2020[98]) 11 Civil Registries across the UK are dealt with individually by each constituency. For example see Plymouth, where death registrations are being carried out over the phone (https://www.plymouth.gov.uk/birthsmarriagesanddeaths/coronaviruscovid19informationonbirthsdeathsandmarriages) or in Sutton (https://www.sutton.gov.uk/info/200469/sutton_register_office/1294/more_about_the_register_office/10).

ACCESS TO JUSTICE AND THE COVID-19 PANDEMIC © OECD/ LAW & JUSTICE FOUNDATION OF NEW SOUTH WALES 2020  The Ministry of Economy in Chile identified that the current health crisis would lead to a failure of contractual parties to comply with their obligations under multiple service contracts. To avoid an avalanche of lawsuits between parties in the short term, the Santiago Chamber of Commerce together with the Ministry of Economy have launched a programme that makes 1,000 pro bono mediations available to the community1.

1. The Arbitration and Mediation Centre of the Santiago Chamber of Commerce will be the entity that administers the pro bono mediation service, for conflicts whose amount does not exceed 3,000 Chilean Unit of Account (equivalent to about 109,027.97 USD), for 1,000 requests on a first-come, first-served basis via mail. To provide this service, an agreement will be signed with the Chilean Association of Mediators, so that the mediators on their payroll can collaborate in this initiative.

2. The request for mediation must be sent to the identified e-mail addresses; the contract must be accompanied by the individuals’ data, telephone and e-mail of the party requesting the mediation and the party requested.

3. The Center will assign the mediation and will supervise the process, according to its quality standards and code of ethics of the mediator.

4. The mediation will be carried out online, by duly trained mediators, giving priority to video conferencing.

 Moving some processes towards the online sphere when shaping the ‘new normal’ of justice systems in the medium term could improve accessibility of justice, in particular for vulnerable groups. Accessibility is closely related to the principle of equality and inclusion in that people-centred legal and justice services should be designed to overcome the range of barriers to access that apply in each country. One way to do so will be through the adoption of technological means as a more regular procedure in some instances. However, due attention should be given to the fact that disadvantaged groups may not have access to the necessary technical means or knowledge, in order to create the relevant safeguards (see below).

OECD had identified in previous research that information and communications technology (ICT) was increasingly seen as a key enabler to overcome a range of barriers and make legal and justice services more accessible (OECD, 2019[9]). There had been, even before COVID-19 related lockdowns, mounting evidence that people-centred strategies employing telephone and audio-visual technology, the Internet and software applications help to overcome some barriers to accessing justice and have the potential to create justice system efficiencies (Smith, 2014[10]) (Staudt, 2009[11]). Use of technology to resolve legal issues involves lower costs for litigants, especially those who are vulnerable and have little to no means and would otherwise be deterred from seeking legal adjudication; removes geographical barriers; and avoids excessive presence in intimidating court settings, particularly of children. Yet, careful evaluation and impact assessments are necessary to ensure that move to online justice does not impede the access to the vulnerable and develops safeguards to ensure procedural rights (see Brief and the discussion below).

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Risks and considerations

 Ensuring effective access and the right to a fair trial - The majority of international human rights treaties and national constitutions enshrine the right to a fair trial as a fundamental right. Article 10 of the Universal Declaration of Human Rights defines it as the right to “a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and of any criminal charge against him” (UN General Assembly, 1948[12]). From the standpoint of the OECD criteria for people-centred legal and justice services, people-centred lens require the design of such hearing with a focus on the outcomes, not only in the process. These include two types of outcomes to keep in mind: procedural outcomes, which include factors such as the person’s level of satisfaction with the process and the level of stress experienced; and substantive outcomes, which can also be measured from the perspective of the individual’s satisfaction, but also against an objective standard or societal goal.

 The first ramification of this right to a fair trial is to have the opportunity to make one’s case effectively. Potential considerations in claiming this right are summarised in Box 3. A second essential part of the right to a fair trial is for it to be a public hearing. Concerns have been raised about how online trials will be made public and accessible to those who wish to be present (The Transparency Project, 2020[13]). In this regard, some countries are moving to ensure that all trial sessions are recorded, stored in a central location for future reference, and accessible for download by the public, except in those cases where other interests prevail according to the applicable law. In Lithuania, for instance, in case the court hearing is conducted with the exclusion of public, there is a legal obligation to make an audio recording of the hearing which should be made accessible as soon as possible after the hearing. As highlighted above, several countries, such as Chile and Malaysia, have also been able to broadcast trials live.

 Removal of face-to-face presence - The removal of a co-presence element to court hearings might have a negative impact in the outcome of the trial for some groups due to several reasons. Firstly, research conducted on the effects of introducing videoconferencing trials suggests that conducting hearings through such tools can generate disengagement of participants and that they are less likely to seek legal advice (Eagly, 2015[14]), (Terry, 2010[15]). This effect might be exacerbated in cases involving children, who may not fully understand the seriousness of a trial proceeding if they conduct it through a video conference (Standing Committee for Youth Justice, 2018[16]). Second, some evidence suggests that participants involved in video conference proceedings face increased isolation and emotional distress (Kitzinger, 2020[17]). In order to ensure a people-centred approach, focusing on these possible outcomes for individuals is essential. A possible solution would be to start implementing a survey for users and implement improvements to remote hearings based on layperson experience (Sela, 2016[18]).

Box 3. Challenges to ensure the right to a fair trial in the digital environment

Digital divide. A barrier posed by the current situation is that not everyone has access to Internet connection, to adequate hardware devices to take effective part in a trial, or sufficient IT knowledge on how to use these tools (UNCTAD, 2020[86]). Moreover, evidence suggests that people who do not have access to Internet connection are often individuals which were already in more vulnerable economic and social positions1. In this vein, a people-centred agenda requires making tools and mechanisms available to proactively detect parties who may be considered vulnerable and ensuring that reasonable

ACCESS TO JUSTICE AND THE COVID-19 PANDEMIC © OECD/ LAW & JUSTICE FOUNDATION OF NEW SOUTH WALES 2020  adjustments are made to enable them to participate fully in proceedings. For example, VCT procedures could be substituted by telephone hearings in case the participant has a phone but not a computer, and they should be dialed out instead of asked to join with a number to ensure that they have enough call credit. Judges should have wide discretion to adjourn cases if a party to proceedings complains that they cannot follow proceedings (The Legal Education Foundation, 2020[92]). These measures will ensure a higher satisfaction from the standpoint of procedural outcomes discussed above.

Capacity of justice institutions. In addition, courts and dispute resolution centres may also face technological barriers to enable justice services to be provided digitally. For instance in Colombia, out of 165 Arbitration and Conciliation centreps, 108 had the capacity to provide justice services through the use of digital tools, but 57 could not work this way, so they decided to suspend deadlines in their procedures (Ministry of Justice and Law, Colombia, 2020[109]). Growing capacity of the justice sector to carry out online procedures with the adequate safeguards will be a challenge going forward.

Quality of representation. Long-distance proceedings may also make difficult effective relationships and preparation meetings between a participant in trial and his or her lawyers (Gibbs, 2017[20]). Evidence suggests that clients share less information with their attorneys during online meetings (Burton, 2018[93]). Access to legal advice is crucial in obtaining effective remedies to legal problems, and therefore legal aid adapted to people’s personal situation should be ensured as an essential service throughout lockdown measures and beyond. Carrying out trials through solely electronic means may also hinder the ability to present some means of proof, and hence, solutions for this shortcoming should be devised whenever possible. As highlighted by the United Kingdom during the OECD Global Virtual Roundtable on the impact of COVID-19 on Access to Justice, vulnerable users could be disadvantaged by online-only processes, for example, in the context of medical assessments and personal injury cases.

Finally, initial evidence from online trials suggests that technical glitches may affect the fluidity and quality of defense of even the most talented oral advocates, due to image-audio time lags, losses of connection by some of the participants and overall audio or sound conditions that are worse than they 1 would be in a physical trial (Federal Court of Australia, 2020[94]) . The absence of body language may also downplay the strength of one’s case. All of these may affect procedural outcomes since the individual will not feel as well prepared and / or as fairly treated by the legal system, but also substantial ones, since as described below, these hurdles may also affect the substantial outcomes of trials.

The effects of these barriers should not be taken lightly. While there has not yet been a systematic data gathering effort in this regard, some evidence points out that justice outcomes can be influenced by remote, as compared with face-to-face, hearings: the Bailout Project found that 50% of applicants heard via video link were refused bail, compared to 22% of those heard in person (The Bail Observation Project, 2013[95]).

 Addressing informality - Traditional court rituals are modified by the introduction of VCT trials, which instill an element of informality. This often materialises in a more relaxed dress-code, domestic backdrops, and some background noises or interruptions (Rowden and Wallace, 2017[19]). Making court settings less formal could be an effective means to tackle the barrier posed by intimidation in court, which maybe experienced especially by vulnerable groups. In certain cases however, it is important to keep in mind that this informality should not downplay the sense of importance given to a case (Kitzinger, 2020[17]), since some victims or claimants of online trials have expressed the feeling that their case deserved a more attentive and solemn atmosphere

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(Gibbs, 2017[20]). Tackling these sensations will improve client satisfaction and feeling of fairness in relation to the process. Before the crisis, it was observed across the board that adoption of ICT tools for justice systems was sporadic and their use far from widespread, and that it was linked to significant investments required for their implementation (OECD, 2019[9]). In this regard, as highlighted in the Brief, leveraging this opportunity where implementation of ICT tools has been almost forcibly carried out could have significant benefits in terms of accessibility. Yet, it would be important to carefully design a service delivery that includes a multi- channel approach. Implementing a variety of means to access justice services (face-to-face when possible, telephone, web portal, e-mail, social media, etc.) could account for the identified barriers by avoiding isolation of those without access to the Internet or digital skills, while still reaping the benefits of digitalisation (OECD Digital Transformation Studies, 2018[21]). For example in Mexico, the Office of the Prosecutor General of the Republic has accepted complaints both through regular post mail and through its website throughout the confinement period (Office of the Prosecutor General of the Republic of Mexico, 2020[2]). Similarly, implementing face-to-face trials for topics that are sensitive to the negative effects of remoteness, such as physical injury or serious family law cases, could address downsides of the digital transformation and allow increases in efficiency at the same time by undertaking appropriate trials remotely. Legal advice provision and legal aid The need to address people’s legal problems has driven a range of initiatives during the crisis, which can offer relevant innovations going forward in facilitating the people-centred transformation. Accessibility of justice may also be expanded through remote working for lawyers and exploration of innovative ways of providing legal counselling. In Lithuania, for example, it has been strongly advised to organise the provision of state-guaranteed legal aid using remote working tools, i.e. send all requests by e-mail, provide consultations by phone, online or use other means of telecommunication (Ministry of Justice, Lithuania, 2020[22]). In Israel, official legal aid is provided by the Ministry of Justice through the use of technological means and telephones, and they have recorded an increase in the number of calls to the call centre to receive legal assistance during this time (while the call centre is absorbing previously physical visits, a significant increase in domestic violence cases has also been registered) (Ministry of Justice, Israel, 2020[23]). Other means could include broadening the scope of legal aid services to include more people in its scope; aid to participate in ADR proceedings; and to cover civil cases, since they will face an increase but with reduced means for litigants (in particular, for SMEs, entrepreneurs and self-employed workers). Spanish law firm Milcontratos has offered free access to over a thousand legal document templates reviewed by lawyers to ensure acceptable legal documentation reached customers during the pandemic (Milcontratos, 2020[24]). Another critical dimension is the availability of financing for legal and justice services to ensure legal aid reaches those most in need. Financial support to the non-profit sector (NGOs and civil society organisations) has been strongly disrupted by the economic crisis and by social distancing requirements. In the United Kingdom, a £750 million package of funding has been allocated for charity and legal advice organisations to ensure continuity of their operations. Some of this funding will go towards enabling providers to adapt their delivery models to online provision and social distancing measures (United Kingdom Government, 2020[25]). In particular for the legal aid sector in the UK, the Community Justice Fund (Community Justice Fund, 2020[26]) has emerged as a joint initiative gathering independent funders working in partnership with key representative umbrella bodies12 to help specialist social welfare legal advice organisations with the immediate and medium term impact of the COVID-19 pandemic.

12 The Fund is made up of contributions from a range of sources, including the UK government. It is a joint initiative between Advice UK, Law Centres Network and Citizens Advice and a group of independent funders (the AB Charitable Trust, Access to Justice Foundation, Indigo Trust, Paul Hamlyn Foundation, The Legal Education Foundation and Therium Access). It is hosted by the Access to Justice Foundation.

ACCESS TO JUSTICE AND THE COVID-19 PANDEMIC © OECD/ LAW & JUSTICE FOUNDATION OF NEW SOUTH WALES 2020 Australia has strengthened financial support for the legal assistance sector to support the recovery (see Box 4). In the United States, an extra USD 50 million of emergency funding were awarded to the Legal Services Corporation (the largest legal aid funder in the country) through the “Coronavirus Aid, Relief, and Economic Security Act” (CARES Act) to address the increased legal needs of low-income Americans caused or made worse by the COVID-19 pandemic. In France, the government has also provided additional support for lawyers who may be suffering a loss of income due to the crisis.

Box 4. Australia’s support to the legal assistance sector

In May 2020, the Australian Government announced an additional AUD 63.3 million in funding to be provided for the legal assistance sector in order to ensure access to legal support for those Australians who need it during the COVID-19 crisis. The Government indicated that this additional funding was to ensure frontline legal service providers have the resources they need to meet any increased demand caused by the pandemic (Attorney General for Australia, 2020[118]).

The additional AUD 63.3 million would be used as follows:  AUD 49.8 million for additional frontline legal services, such as legal advice or representation, with o AUD 20 million to be used for matters involving domestic and family violence; and o AUD 29.8 million will help fund other COVID-19 issues, such as tenancy disputes, insurance, credit and debt related problems, and work-related claims.  AUD 13.5 million for IT costs to support the legal assistance sector’s transition to delivering assistance virtually and online (in particular allowing the legal assistance sector to purchase much needed equipment such as new laptops, upgrading internet connectivity, personal protective equipment, and remote access facilities)

The additional funding aims to support the legal assistance sector in responding to increased demand due to COVID-19 with providers being given flexibility to allocate funding to individual programmes based on need and the best delivery mechanism available to them. The Commonwealth Government (the national government in the federation) also invited all Australian state and territory governments to consider matching this funding contribution.

In addition, the National Cabinet highlighted the importance of finalising the agreement between the governments of the Commonwealth and the states for the establishment of a new five-year National Legal Assistance Partnership through which the Australian Government will provide more than AUD 2 billion to fund front line legal assistance services to help Australians address legal issues.

Accessibility of justice can also be promoted through trainings, both to raise legal literacy of the public and for judicial staff to be able to better help the users and be able to adapt to their particular personal, social or cultural circumstances. For example in Italy, online trainings for judges and court staff about risk management in the COVID-19 context are being implemented online. Easy to use tools and off-the-shelf understandable briefs to make regulations and legal advice reach the most vulnerable, such as the development of legal apps or live chats to submit legal queries of low complexity, could also provide help for a majority of cases including those related to tax filings, benefits, employment or rent / debt repayments.

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For example in Israel, in order to provide information about specific challenges and issues being dealt with by vulnerable groups, the Ministry of Justice has published videos that simplify different legal subjects and rights, in matters such as: public housing, mental institutionalisation, personal status, debt management and labor law (Ministry of Justice, Israel, 2020[23]). In Ukraine, the initiative from the Ukrainian Legal Aid Foundation Just Rights (accessible for users through the website www.prostoprav.in.ua) is a platform that allows anyone to create a simple application, and lawyers registered on the website decide to help or not and how much they would charge (although, very often lawyers help for free). Legal Aid Ukraine explained through their contribution to the Call for Evidence that because people are not afraid to ask and there is no compromise on either side, they actively use the resource. Solutions like the American Bar Association’s “Free Legal Answers” easy to use legal questionnaire (American Bar Association, 2020[27]) or the Canadian’s repository of eviction regulations per province (Canada Mortgage and Housing Corporation, 2020[28]) could also bring the law closer to those in need. The Legal Design Lab at Stanford Law School is using SMS technology to improve legal aid hotlines, and is exploring a possible collaboration with search engines to improve how legal information is shown when people look online for help (Martinez Layuno, 2020[29]). Also in Ukraine, the Ukrainian Access to Justice School of Practice has developed four COVID- 19 specific programmes to enhance access to justice during the pandemic across the country (see Box 5). Through these programmes, the whole of the justice chain actors can be involved in the provision of more accessible justice (see Brief).

Box 5. Ukrainian Access to Justice School of Practice programmes in response to COVID-19

The Ukrainian Access to Justice School of Practice is an educational platform co-founded by the Ministry of Justice, Legal Aid Ukraine, Association of Legal Clinics of Ukraine, Legal Development Network, and Ukrainian Legal Aid Foundation. The School has now adjusted its work to the current crisis. Several programmes of the School took action, in particular:

1) To address the vulnerability of marginalised groups during the pandemic, one of the School Programmes -- Laboratory of initiatives to strengthen A2J for groups vulnerable to HIV -- started to research the pandemic-related legal issues of groups vulnerable to HIV. Of the 75 surveyed respondents, 61% said to be facing pandemic-related legal problems, which included difficulties to access the health system. Based on the results, the Programme developed both an immediate and longer term strategy of action, which is planned to include: - a course and practical guidance for lawyers on ‘How to protect people vulnerable to HIV (based on the most urgent problems)’; - trainings for Legal Aid Ukraine centres’ specialists on protecting the right to medical care for people vulnerable to HIV and take action against discrimination; - advocacy efforts, as well as the creation of educational videos/leaflets to share in social media; and - development of guidelines on how to access legal aid guaranteed by the law through online tools.

2) The second Programme, Pro Bono Lab, was transformed to help NGOs in the crisis. At the beginning of lockdown measures, a survey was conducted on NGO legal needs. The identified problems mostly concerned tax, rent issues, problems with online management, setting up the remote work with clients, security in the web. In line with the results, the Programme developed webinars and short videos to be posted in social media and help NGOs cope with the crisis.

3) Legal IT HUB usually works on innovative technological solutions in the area of access to justice and community management. Faced with the quick transition of a large part of legal and social life to the web (and related problems, such as cyberbullying, new forms of discrimination, cybercrime, etc.), the Programme team worked on the urgent response to these challenges by sharing practical tips for

ACCESS TO JUSTICE AND THE COVID-19 PANDEMIC © OECD/ LAW & JUSTICE FOUNDATION OF NEW SOUTH WALES 2020  remote work, overviews of remote management tools, overviews on cybersecurity and overviews of online training tools.

4) The Legal empowerment of communities Programme and the Paralegal educational Programme, which train community activists to conduct research on legal needs in their communities, switched to online trainings.

Contribution of Mrs. Kateryna Khilchevska, director of the Ukrainian Access to Justice School of Practice

  Enhancing access to justice through collaboration and integration of services

Providing legal aid together with other state socio-economic benefits associated with the crisis could also be a means of detecting vulnerable populations who may be subject to legal problems and their associated clustering effects early on. This might keep a family in its home, or help someone keep a single financial problem from becoming a crisis (Namoradze and Chapman, 2017[30]). Legal support could be a part of economic benefit packages designed for SMEs, self-employed individuals or those who lose their income as a result of the crisis, including through the online portals providing services businesses and people. Institutional approaches, such as the newly established Canada Access to Justice Secretariat, can help strengthen partnerships and held establish referral pathways across agencies working on issues of labor, veterans, and health (see Brief). This service could also be co-ordinated through National Bar Associations13. In Ireland, a type of collaboration established to target vulnerable families has been identifying social welfare recipients who are no longer receiving child maintenance from the other parent because of job loss due to COVID-19. In those cases, the Department of Employment Affairs and Social Protection has agreed to revise their payments upwards for a 12-week period (Department of Justice and Equality of Ireland, 2020[31]).

The creation of medical-legal partnerships to address health related legal needs, including for example legal health checks in hospitals, could also be explored (National Center for Medical-Legal Partnership, 2020[32]). Access to healthcare, and resolution of health insurance or similar disputes, is likely to be an essential need for many patients suffering from COVID-19 and their families. Ensuring access to health- related justice may enable the system to detect, address and prevent health-harming social conditions that have their roots in legal problems, and to help secure healthcare coverage by avoiding or resolving erroneous administrative denials of benefit. Various programmes demonstrate that integrating legal and health services lowers health care costs and improves well-being (OECD, 2019[9]). Improvements are seen in the general population as well as among specific marginalised groups, such as USA Native Americans (National Center for Medical-Legal Partnership, 2014[33]).

Another example of people-centred practice has been implemented by the US Legal Services Corporation, which reported that when someone comes to the office and it is closed, that person can reach somebody in a legal aid office remotely by video through ringing the doorbell. This allows the person to receive information on how they could still ask for support online or call a hotline to receive legal aid services (Legal Services Corporation, 2020[34]). Implementation of these “No Wrong Door” service delivery models is even more important during the pandemic, because justice pathways and usual contact

13 For instance, the American Bar Association’s Young Lawyers Division has created a national hotline to connect with those needing legal services during the COVID-19 pandemic through its Disaster Legal Services Program. The Madrid Bar Association has also put together a list of over 300 qualified lawyer volunteers to help SMEs in employment law matters related to COVID-19.

ACCESS TO JUSTICE AND THE COVID-19 PANDEMIC © OECD/ LAW & JUSTICE FOUNDATION OF NEW SOUTH WALES 2020 spots for vulnerable users are likely to have radically changed. Successfully developing this type of service provision would require a whole-of-government approach, with likely implication and co-ordination among several departments and agencies throughout the justice journey (see Brief).

Co-ordinating a legal aid response from different community actors, such as pro bono volunteer teams in large law firms and in-house teams with high levels of technical expertise, NGOs, student legal clinics and academics could provide an increased support that the state alone may not be able to absorb. Many of these have already started springing spontaneously. The Volunteers of Legal Services have launched an Unemployed Workers project and a Frontline and Healthcare Workers project to target legal aid to those most in need, on top of their regular support to the elderly and children (Volunteers of Legal Service, 2020[35]). Indeed, there is emerging evidence that flexible forms of legal assistance can result in potential benefits and cost savings (OECD, 2019[36]). In New York City, an estimate commissioned by the New York City Bar Association found that the city could potentially save USD 320 million—annually—in shelter savings and affordable housing services by offering legal support to tenants (Stout Risius Ross, Inc. for NY Bar, 2016[37]). In Australia, the government stresses flexible legal assistance as “early intervention” to prevent legal problems from escalating (Pleasence et al., 2014[38]).

Empowering communities to deal with their legal problems

The pandemic has brought to the forefront the importance of legal empowerment approaches, which are essential to enable ordinary people to use the law to have the voice in the system as a whole and find concrete solutions to their pressing justice problems.

Indeed, in a number of countries, community-based justice services play an essential role to help people address their legal problems. Some are publicly funded (Ontario, Canada and New South Wales, Australia), others are administered by the governments (e.g., access to justice centres in Argentina or houses of justice in France). Many of these are currently closed to the public but operating remotely (Rouxel, 2020[39]). These services use a combination of tools – ranging from legal literacy and advice to community mobilisation and advocacy – to resolve individual or community problems while simultaneously advancing systemic reform in the interest of the poor and marginalised communities.

These methods could be crucial in the post-COVID-19 context to avoid the collapse of the court system due to rising caseloads.

Promoting equality and inclusion through the justice system

Equality and social inclusion are the normative core of access to justice. Promoting equality and inclusion as guiding principles require legal service providers to pay attention to the specific needs and experiences of vulnerable and marginalised groups in their service design.

Tackling domestic violence

A critical function of justice and law enforcement systems in the context of strict lockdown has been to provide a survivor-centred justice pathway, which could empower survivors to denounce their abuser safely from home. This could be achieved, among others, through provision of a helpline number or website established for this purpose. These resources should be complemented by adequate and language- appropriate information about the victim’s rights, and regarding when and how to seek help. Importantly, continued and in fact enhanced provision of legal services to victims of domestic violence, especially in times of crisis when the incidences of violence have heightened, can reduce its prevalence and the

ACCESS TO JUSTICE AND THE COVID-19 PANDEMIC © OECD/ LAW & JUSTICE FOUNDATION OF NEW SOUTH WALES 2020 associated cost to governments. Exploring this further, a victim’s capacity to successfully obtain a restraining order against an abusing party is important in preventing future incidents of violence and associated emotional, social and financial costs. Some justice systems, such as the State of Connecticut Family Courts, are starting to extend restraining orders remotely (State of Connecticut Judicial Branch, 2020[40]). Through forms published in the judicial website, applicants will be able to complete and file an application by fax or email, without the need for a notary public and without having to go to the court clerk’s office. Online protection orders are also being expedited in Mexico throughout confinement periods (Office of the Prosecutor General of the Republic of Mexico, 2020[2]) It could be relevant to explore the applicability of these approaches in the post-crisis environment.

Providing specialised legal aid services to victims of violence (not only in criminal but also family, administrative and civil cases), both during and after the crisis, can provide significant savings (OECD, 2019[36]) (e.g., a study in the US showed savings of USD 3 630 per family (accounting for emergency medical care, shelter, counselling and education) (Abel and Vignola, 2010[41]). Some country-specific approaches can be found in Box 6.

Box 6. Country measures taken to address domestic violence during the pandemic

The surge in domestic violence cases caused by the pandemic and its associated measures have led several countries to adopt comprehensive action plans to tackle protection of women and children victims effectively. Without being exhaustive, some examples include:

In Ireland, the Department of Justice and Equality has developed an inter-agency plan to address the heightened threat of domestic abuse at this time, which includes:

• Additional funding of over €196,000 has been provided to community and voluntary groups in the sector. • An Garda Síochána (the Irish Police) has established a proactive targeted policing initiative for domestic abuse victims. This means the police is visiting the homes of citizens who had come to their attention the last two to three years and knocking on the door to remind the occupants that the guards are there and that they are available to help. This measure highly resonates with the proactivity and timeliness criteria in that it “puts assistance” in people’s paths. • The Courts Service and Legal Aid Board are giving priority to domestic abuse and childcare cases and a Helpline has also been established. • The Minister for Justice and Equality, Charlie Flanagan and Minister of State David Stanton have also launched a public awareness campaign (Department of Justice and Equality of Ireland, 2020[31]).

In Portugal, the Law for Domestic Violence has been revised to give women with children a swifter solution in a situation of abuse, allowing protective measures to take place faster these women and their children. Suspension of the eviction of tenants and enforcement of mortgages that fall on private housing (Ministry of Justice, Portugal, 2020[5]).

In Spain, a comprehensive COVID-19 response programme for gender violence victims has been launched, where on top of the existing 24/7 attention number and e-mail address, several WhatsApp numbers have been introduced to ease making claims and to provide psychological support. An App called ALERTCOPS has been developed through which victims can alert the police and send their address without having to make a call. In addition, all victims have the right to free legal advice in 52 languages through the helpline number.

ACCESS TO JUSTICE AND THE COVID-19 PANDEMIC © OECD/ LAW & JUSTICE FOUNDATION OF NEW SOUTH WALES 2020

In Egypt, Slovak Republic, Tunisia, Lithuania, Chile, United Kingdom and France among others, special free helpline numbers have been established for domestic victims in immediate danger. These are also serviced through e-mail in Denmark and SMS in France. In addition, some countries (e.g., Chile, Spain and France), are using the code word “Facemask 19” is used in pharmacies to identify the women seeking assistance.

Colombia reported putting in place guarantees for victims and survivors of domestic violence to have full access to family commissioners, cash transfers and service supports during the COVID-19 crisis (Ministry of Justice and Law, Colombia, 2020[8]).

Chile’s Ministry of Women and Gender Equality has announced significant preventive and containment measures such as continued operations centres for women and 100% operative shelters, campaigns to encourage reporting, and online prevention courses. Some of these have included: #ContigoMujer (with you woman), #PasaElDato (pass it on) and “En esta comunidad no entra la violencia”, all of them campaigns directed at raising public awareness for the issue of violence or to strengthen communities of women; and a campaign to promote healthy sharing of domestic tasks and dialogue in couples to avoid escalation of disagreements into violence (Ministry of Justice, Chile, 2020[119]).

As highlighted during the OECD’s conference Taking Public Action to End Violence at Home (February 2020, hereinafter the VAW Conference), access to justice is one of the critical dimensions that can reduce domestic violence against women. However, to be most effective, it was underscored that integrated service delivery should be made available for survivors through a whole-of-government response, due to the benefits of this approach as highlighted in the Brief. The whole-of-government response, in turn, would be most strongly supported by a national plan with cross-party support to address violence against women.

The heightened levels of domestic violence that have been registered throughout the pandemic also affect children, who are at increased risk of abuse and neglect (OECD, 2020[42]). Measures related to the pandemic like at-home schooling and confinement have increased the amount of hours spent online by children, prompting several governments to create specific response programmes in the context of COVID- 19 (for instance see the US Ministry of Justice dedicated website, the Australian Government’s safety Commissioner’s advice booklet to keep children safe online, or the Canadian Centre for Child Protection resources for parents, teachers and children).

Collecting sufficient data in this area will play a critical role in the production of evidence-based policy and development of a risk-based and survivor-centred approach to tackling these critical issues.

Ensuring access to justice for ethnic minority groups

The COVID-19 pandemic is having a major disproportionate impact on racial and ethnic minorities (U.S. Department of Health and Human Services, 2020[43]) (Millet GA, Jones AT, Benkeser D et al, 2020[44]). For instance, in Brazil’s Sao Paulo city, people of colour are 62% more likely to die from COVID-19 than white people (Lilly Caldwell K., De Araújo E., 2020[45]) UN High Commissioner for Human Rights Michelle Bachelet recently found that the crisis has thus exposed “alarming inequalities” within our societies that go beyond health inequality (OHCHR, 2020[46]). Increasing evidence suggests that this is often due to the disparities in access to healthcare, high rates of poverty, wage gap, cramped living conditions, lack of access to essential services, sanitation, and stigma faced when accessing services (International Organization for Migration, 2020[47]). In parallel, across the United States and the globe, the COVID-19

ACCESS TO JUSTICE AND THE COVID-19 PANDEMIC © OECD/ LAW & JUSTICE FOUNDATION OF NEW SOUTH WALES 2020 outbreak has been accompanied by growing protests calling for racial justice and equality, with a particular focus in the legal and law enforcement treatment of African Americans (Black Lives Matter[48]).

One such underlying inequality for racial and ethnic minorities, already identified and documented widely before the pandemic, is uneven access to the justice system. For instance, the Justice Project in Australia found that Aboriginal and Torres Strait Islander people were more likely than non-Indigenous people to experience multiple, intersecting legal problems, including increased legal needs in crime, government, child protection, tenancy, discrimination, social security, consumer issues and family law; and that they were 12.5 times more likely than non-Aboriginal Australians to be imprisoned (The Justice Project, Law Council of Australia, 2018[49]). Specific measures should be undertaken by countries to ensure that unequal access to legal remedies during and in the aftermath of the pandemic do not further entrench pre-existing inequalities, and to address discrimination of minorities more broadly.

A key solution proposed by IOM has been to ensure that all necessary information is available in local languages, and that individuals are able to express their questions in their language (International Organization for Migration, 2020[47]). Canada’s Health Ministry has adopted this advice by translating its key information on COVID-19 into ten indigenous languages and has committed about $1.7 billion in specific support to Indigenous and northern communities and organizations. Translation into local languages would also be a good practice to inform minorities of their legal rights and avenues to execute them. In the United Kingdom, several initiatives have been undertaken to protect BAME (Black, Asian and minority ethnic) communities from the virus’ impact, and they have been identified as vulnerable workers due to growing incidence of the virus in their communities (GMCVO, 2020[50]). Italy has monitored cases of discrimination related to the COVID-19 emergency, finding up to 30 cases of physical or verbal aggression until now (OHCHR, 2020[51]). More good country practices to address minority issues during the pandemic can be found in OHCHR’s Covid-19 And Minority Rights: Overview And Promising Practices.

Promoting inclusiveness of refugees and migrants through access to justice

A World Health Organisation (WHO) comment published in The Lancet highlighted the effects of the COVID-19 pandemic on refugees and migrants and the need to include them in outbreak response and readiness (WHO and Kluge et al, March 2020[52]). Refugees and migrants are vulnerable groups at increased risk of contracting COVID-19, because they typically live in overcrowded conditions without the means to self-isolate or follow basic public health measures. They are also over-represented among the homeless population in most countries, face obstacles in accessing sanitation facilities, and are particularly affected in cases of income loss. Many of these difficulties are linked to the uncertainty in their legal status (WHO and Kluge et al, March 2020[52]).

Therefore, accessing legal and justice services is essential to refugees and many migrants, since their legal status (and with it, their access to social services and employment) often hinge on an administrative or judicial decision. However, institution closures and slowdown of case processing are in many cases halting the procedures, further entrenching their marginalisation (Vera Institute of Justice, 2020[53]). This is coupled with great regulatory haste concerning immigration and border movements, with many emergency measures being adopted that restrict the possibility to apply for asylum and employment visas. Moreover, unlike in criminal court, in most countries immigrants facing deportation do not have the right to a lawyer when they can not afford one, leaving most without access to legal representation (Berberich and Siulc, 2018[54])

To tackle these vulnerabilities effectively, open communication and proactive outreach to migrant and refugee communities are important to raise awareness of the resources available to them, which could be coupled with additional protective measures to lighten the burden from uncertainty in status and lack of

ACCESS TO JUSTICE AND THE COVID-19 PANDEMIC © OECD/ LAW & JUSTICE FOUNDATION OF NEW SOUTH WALES 2020 access to healthcare. For example, Portugal temporarily granted full rights of citizenship to non-citizens during the pandemic, so that they had access to the same services as citizens do (Ministry of Justice, Portugal, 2020[5]). Chicago Mayor Lori Lightfoot issued an executive order ensuring that all residents, regardless of immigration status, can access city services and benefits, including the city’s new COVID-19 Housing Assistance Grant programme. In addition to direct relief measures, Mayor Lightfoot also committed to continuing support for the city’s Legal Protection Fund (Chicago Office of the Mayor, 2020[55]).

Ensuring justice reaches the elderly and children

Some of the most vulnerable groups in terms of effective access to justice are those who, by reason of their age, are either not allowed or find it difficult to reach justice services and understand the rights or procedures applicable to them. The elderly, whose health has been the most impacted by the COVID-19 virus, often face specific barriers to access justice such as lack of knowledge about obligations, rights and procedures, concern of costs and long-standing ill health (Japan Federation of Bar Associations, 2016- 2017[56]). For those living in care homes that are being mistreated by the staff, their abuser(s) may be their only link to outside world, or they might have limited means to be transported outside of the homes to access legal services (Seniors First British Columbia, 2020[57]). In the context of COVID-19 and its aftermath, increased digitalisation may risk leaving the elderly behind, since they might not have the user skills necessary to access justice through digital means. To tackle this issue, the Israeli Ministry of Justice has used traditional media outlets such as television and newspapers to share the availability of new and existing services provided specifically for the elderly population and holocaust survivors (Ministry of Justice, Israel, 2020[23]).

When addressing the aftermath of the crisis and reshaping the legal landscape, specific consideration must be given to the digital divide that separates the elderly from younger generations. One option is to provide assisted digital service delivery, which is a means to enable otherwise excluded group to access public services with the help of a professional. That has been one of the recommendations of the National Center on Law & Elder Rights (USA), which has proposed guidelines on how organisations can offer support to seniors remotely that include walking clients through self-help forms by phone (National Center on Law & Elder Rights, 2020[58]). Several elderly legal aid branches from governments have kept on working remotely. The Elder Abuse Service of Legal Aid New South Wales is offering assistance through a telephone hotline (Legal Aid New South Wales, 2020[59]), similarly to the Pennsylvania Senior Law Centre (Senior Law Center, 2020[60]) and the Centre for Elder Law & Justice of New York (Center for Elder Law & Justice, 2020[61]). Collaboration across government institutions and throughout the justice chain, as highlighted in the Brief, might be of particular importance when addressing barriers for the elderly. Medical- legal partnerships and integrated service delivery that will help the elderly be aware of their rights and how to enforce them while accessing their social benefits, pension payments, or while visiting their doctor, might be extremely useful.

In a similar vein, barriers for children to access justice had previously been identified in the complexity and length of proceedings, unawareness of their rights by them or their families, and in cases of maltreatment, due to the fact that their abusers are often their caretakers and link with the outside world (Davidson et al., 2019[62]). Such obstacles are likely aggravated by the current crisis, as identified in the OECD’s Policy Brief Combatting COVID-19's effect on children (see domestic violence section above). Child-specific needs must be taken into account more broadly by future justice reforms, not only to tackle violence cases, but to leverage this opportunity to reduce some of the barriers they are facing.

One way could be to carry out trials for children (when the subject matter is appropriate) remotely, since evidence has shown that court settings can be intimidating for children (Council of Europe, 2010[63]) and they may feel safer at home (although care is needed in case an abuser is at home). Online civil registration

ACCESS TO JUSTICE AND THE COVID-19 PANDEMIC © OECD/ LAW & JUSTICE FOUNDATION OF NEW SOUTH WALES 2020 may also facilitate giving all children a legal identity, as called for by the Call to Action: Leave No Child Behind (Davidson et al., 2019[62]). The opportunity that children now spend more time online can also be leveraged to create online resources adapted for them specifically on their rights and options, using child-friendly language and visuals. One example has been the materials created in the context of COVID-19 by the Children and Family Court Advisory and Support Service in the UK (see their Booklet for children and their youth-centred videos). Finally, insofar as these reforms concern children, they should be done allowing participation of children as well (Davidson et al., 2019[62]) In the context of the likely economic recession, with SMEs and self-employed workers most strongly affected, several countries have taken measures to relieve pressure. Some of these measures have included temporary suspension of enforcement measures against companies (for example, in Belgium); nine-month deferral of loans, health, social and old-age insurance payments for SMEs and entrepreneurs- natural persons, as has been done in Slovakia (Ministry of Justice of the Slovak Republic, 2020[64]); the postponement of the obligation to file tax declarations, or self-employment quotas; and suspension of mortgage payments and evictions for tenants (as has been done in Portugal). In Israel, different units and departments within the Israeli Ministry of Justice have created new relief regulations in order to assist companies and individuals that have been greatly affected by this virus, making efforts to allow online services and postpone deadlines. Finally, significant measures have been taken in the area of insolvency (see Box 7).

Box 7. Adaptations of insolvency regimes

Due to the sudden halt to economic activity imposed by lockdown measures and social distancing, many companies are currently facing severe losses and balances that set them within the limits of mandatory bankruptcy declarations. To avoid massive company closures due to COVID-19, in particular SMEs’, many countries are extending and relaxing insolvency limits to allow companies more margin to recuperate, on the one hand, and to relieve them from immediate debt payments in some cases, on the other. Some examples are the following:

In the Slovak Republic the time-limit to file for bankruptcy was extended to 60 days per article 4 of their COVID Act in April 2020. Profound changes to insolvency proceedings were also introduced: • Slovak entrepreneurs whose business is under threat as a result of COVID measures can ask for a court decision which has similar effects to a temporary moratorium in restructuring proceedings (detailed list of effects is below). • Entrepreneurs (natural or legal persons with residence or seat in Slovakia) who are not insolvent, fraudulent or against whom there was no enforcement procedure as to March 12, 2020, can ask for a temporary moratorium using a form (an obligatory electronic filing is required from companies, not individuals).

In Lithuania, the Ministry of Finance is preparing a draft law on suspension of the duty to file for insolvency by 1 September 2020. This draft law includes a suspension of the creditor’s right to file for insolvency as well but only for the quarantine period. This suspension will apply only to undertakings whose activities have been closed down or restricted as a result of COVID-19 quarantine.

Civil society has also taken the initiative to help small businesses and entrepreneurs face their legal problems. The COVID Small Business Remote Legal Clinic launched by the Lawyers for Good Government Foundation (2020[65]) or 400 Partners launched in France have already gathered numerous law firms to assist SMEs and non-profits suffering the consequences of the crisis pro bono (Agence de Developpement Territorial du Val d'Oise, 2020[66]). Similarly, in the US state of Massachusetts, law firms

ACCESS TO JUSTICE AND THE COVID-19 PANDEMIC © OECD/ LAW & JUSTICE FOUNDATION OF NEW SOUTH WALES 2020 have rallied in a COVID Relief Coalition to offer free remote legal help to small business owners (Covid Relief Coalition, 2020[67]).

In addition, procedural and administrative simplification initiatives have a potential to reduce costs associated with administrative burden on business, hence helping to reinvigorate the economies and making the domestic business environment more competitive and attractive for economic activity (OECD, 2018[68]). Conversely, lengthy proceedings and cumbersome and complex processes can stall economic growth (OECD, 2015[69]). As such, in the growing context of resource scarcity and in anticipation of the collapse that may affect courts after lockdown measures are lifted, any legal processes that are redundant or not essential may benefit from being cut in terms of time, formality or even cease to exist, always keeping in mind the necessary procedural guarantees. Careful design of simplification measures could be a driver of inclusive recovery out of the economic crisis that is ensuing, and even more so in the context of the rising number of business disputes and insolvencies due to the effects of the crisis.

A number of countries are already taking steps to simplify selected procedures in order to enhance their responsiveness to the user’s needs. For example in some Canadian provinces the rules on in-person verification of identity for commissioning affidavits have been shifted to allow for remote verification (McLachlin, 2020[70]). Portugal has long been incorporating procedural simplification in its justice modernisation efforts (e.g., payment of court fees or simplification of court notifications) (OECD, 2020[71]). In Lithuania, participation of a notary has been eliminated in approving some simpler mandates and enabling electronic registration of mandates for which a notarial form is not required (Ministry of Justice, Lithuania, 2020[22]); and in Chile, the expiration date of identity documents has been extended. In Ireland, suspension of civil trials has been enabled through agreements by the parties through e-mail, which was unprecedented. In addition, several countries have promoted the use of written procedure whenever possible, which expedites judgments (Department of Justice and Equality of Ireland, 2020[31]).

Finally, as highlighted in the Brief, deepening the understanding of legal needs of businesses, with an emphasis on SMEs, will be essential to design the justice process effectively in the aftermath of the crisis and be able to measure the effects of each policy against a useful framework. The shift towards user centricity should serve as the guiding principle to design the policy agenda and evaluate legal and justice service content (OECD, 2018[72]).

Increasing effectiveness through evidence-based planning

As of June 2020, real time data on how the COVID-19 crisis is affecting in particular lay people who need to access, or are in contact with, justice systems, is extremely scarce. In addition, every justice system worldwide is facing an unprecedented situation in nature and scale, and as observed above each country is developing ways to continue provision of access to justice. As reflected in the Brief, data collection, sharing and analysis are crucial in this context. They enable evaluation of the effects of the measures that are being rapidly adopted to ensure that they are effective in meeting legal needs; monitoring legal needs of people in real time; to develop useful solutions, and to allocate scarce resources in the most efficient way possible.

Knowledge sharing platforms and websites, open call for inputs and legal surveys will all be essential elements to respond effectively to the crisis. Some examples include the surveys carried out by Statistics Canada (Canada’s official statistical body), which have included surveying citizens about the precautions they are taking, the perceived negative effects that COVID-19 will have on their financial or employment situation (Statistics Canada, 2020[73]), and their mental health (Statistics Canada, 2020[74]). The United Kingdom has also developed several initiatives in this regard (see Box 8).

ACCESS TO JUSTICE AND THE COVID-19 PANDEMIC © OECD/ LAW & JUSTICE FOUNDATION OF NEW SOUTH WALES 2020   Box 8. United Kingdom evidence and research initiatives

The United Kingdom has shined a strong light on the importance of gathering real-time evidence and carrying out research on the ongoing pandemic and its related measures as it evolves. This has led to the adoption of several initiatives:

1. Civil Justice Council (CJC) review of COVID-19 impacts on the Civil Justice System The CJC has commissioned an independent review led by Dr Natalie Byrom, Director of Research at The Legal Education Foundation, with the support of a wider virtual working group to gather feedback on the impact of COVID measures on the civil justice system. This review ran for two weeks from Friday 1 May 2020 to Friday 15 May 2020 in order to report by the end of May 2020. The aim of the review is to provide an overview of the operation of current measures and offer practical recommendations to inform the ongoing response to COVID-19. It concentrated on the experience and reaction of court users. It also aimed to provide useful groundwork for any future wider review of the use of remote hearings, identifying areas where further evidence may be needed (Courts and Tribunals Judiciary, 2020[103]).

2. Research on impacts of remote hearings by the Nuffield Family Justice Observatory The pandemic has required the justice system in England and Wales to pivot rapidly to remote working. In the family justice system this has translated into the widespread expansion of hearings conducted by telephone and video link. The Nuffield Family Justice Observatory (established by the Nuffield Foundation, an independent charitable trust that funds research that informs social policy) has conducted two pieces of work:

 What we know about the impact of remote hearings on access to justice: a rapid evidence review, which explores whether any practical lessons can be drawn from existing research on the impact of remote hearings, with particular reference to the experience of vulnerable groups. The review was undertaken during April 2020 by Dr Natalie Byrom, Director of Research and Learning, Legal Education Foundation (Byrom, 2020[104]).  Remote hearings in the family justice system: a rapid consultation. The President of the Family Division asked Nuffield FJO to undertake this consultation, which sought feedback from parents and carers and all professionals in the family justice system including judges, magistrates, barristers, solicitors, Children and Family Court Advisory and Support Service (Cafcass) advisers, court staff and social workers. Those who had had experience of a remote hearing (a hearing conducted by telephone, Skype or other remote platform) and/or those with expertise or other relevant experience were invited provide feedback about the process and their experience (Ryan, Harker and Rothera, 2020[105]).

3. ESRC Research and Innovation funding The Economic and Social Research Council (ESRC) is a major research funding institution and intends to fund new projects as part of the UK Research and Innovation response to the current COVID-19 pandemic. Proposals are invited for short to medium-term economic and social research activity aimed at addressing and mitigating the impacts of the COVID-19 outbreak on this link. 4. UK Research and Innovation (UKRI) Coronavirus Hub The UKRI Coronavirus Hub (UK Research and Innovation, 2020[106]) provides the latest information on the work of UKRI and its community in response to the crisis, what grants and awards have made, and their continuing call to fund ideas to limit the outbreak. UKRI will support proposals up to 18 months duration which meet at least one of the following: • new research or innovation with a clear impact pathway that has the potential (within the period of the grant); to deliver a significant contribution to the understanding of, and response to, the COVID-19 pandemic and its impacts; • supports the manufacture and/or wide scale adoption of an intervention with significant potential; • gathers critical data and resources quickly for future research use.

ACCESS TO JUSTICE AND THE COVID-19 PANDEMIC © OECD/ LAW & JUSTICE FOUNDATION OF NEW SOUTH WALES 2020

A list of current funded projects is also available on their website which includes research about a variety of social and economic impacts related to employment, income, health, family, education, civic engagement, etc. which might affect legal needs of the population and their ability to resolve the problems they experience.

5. Comparison of Legal Needs before and after the COVID-19 crisis Building on the results of the 2019 Legal Needs Survey (YouGov, the Legal Services Board & the Law Society, 2019[116]) carried out based on the 2019 Guide developed by the OECD and Open Society Justice Initiative (OECD and Open Society Foundations, 2019[117]), the UK is gathering real time data on similar parameters (however, it is not envisioned as a full-blown survey at least for the moment) to be able to compare the current legal needs people register with the results prior to the pandemic and draw conclusions.

Portugal has envisioned to perform a study to understand the new paradigm of telework in justice, its boundaries and significances for the future; and to put up a monitoring mechanism for the adaptations and innovation measures taken during the pandemic to perform an evaluation and understand the requirements for their sustainability after the pandemic period. Broadly speaking, these initiatives highlight the relevance of the data as an essential element to drive people-centricity of justice transformation (see Brief).

Internal communication channels, crisis management and co-ordination committees amongst justice systems and within the government could also help promote the development of evidence- driven responses. For instance, Ireland established a cross-functional COVID-19 response team comprising senior officials from within the Justice Ministry and from key agencies to work together on solutions, which allowed the Ministry to work closely with all relevant criminal and civil justice and public health agencies to adopt measures that were appropriate and in line with public policy and the evolving situation (Department of Justice and Equality of Ireland, 2020[31]). The UK has established a Jury Trials Working group to consider ways to re-start some jury trials once it is safe to do so. The working group reports to the Lord Chief Justice through its chair and includes representatives from the Law Society, Bar Council, Criminal Bar Association, Her Majesty’s Courts and Tribunals Service, Crown Prosecution Service, Prisoner Escort and Custody Service, , Ministry of Justice, Her Majesty’s Prison and Probation Services, National Probation Service, National Police Chiefs' Council, and Legal Aid Agency (Courts and Tribunals, Judiciary, 2020[75]). In Poland, the Ministry of Justice submits to courts updated summaries on the functioning of criminal justice using a specially dedicated e-mail box (Ministry of Justice, Poland, 2020[3]).

ACCESS TO JUSTICE AND THE COVID-19 PANDEMIC © OECD/ LAW & JUSTICE FOUNDATION OF NEW SOUTH WALES 2020 Looking ahead

As highlighted during the 2020 OECD Global Virtual Roundtable, while justice system reform is often difficult and slow to achieve, the reality of the COVID-19 crisis has shown that it can be done. The examples highlighted in this compendium show different ways in which legal and justice services can incorporate a people-centred lens. Many countries are already taking measures that enhance access to justice by their populations in this adverse context, and that a focus on vulnerable collectives has been maintained in several jurisdictions. As such, as underlined in the Brief, justice systems are presented with a chance to gear themselves towards the better in order to leave no one behind.

Yet, as outlined, a move towards technological means to deliver justice can pose a risk to accessibility for those who have difficulty to use those means, and can potentially endanger the right to a fair trial in certain cases. Such risks are likely to be exacerbated in the case of vulnerable groups. These challenges would also need to be addressed from a people-centred viewpoint, possibly through incorporating the lessons contained in the Brief. A whole-of-justice chain involvement enabling effective case triage and multi- channel service delivery, coupled with solid data gathering and analysis, should be among the first steps to find the right balance among the opportunity presented by this crisis, and the relevant concerns it brings.

There is scope to further embed a people-centred approach to justice - while shaping the new normal of justice institutions - by incorporating users’ concerns at every stage of the service design and delivery process, making people’s needs the organising principle around which justice delivery is planned, as underlined in the OECD criteria for people-centred legal and justice services. Let us not miss the opportunity.

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ACCESS TO JUSTICE AND THE COVID-19 PANDEMIC © OECD/ LAW & JUSTICE FOUNDATION OF NEW SOUTH WALES 2020 Contacts

Tatyana TEPLOVA ( [email protected])

Maria PASCUAL ( [email protected])

Geoff MULHERIN ( [email protected])

This paper is published under the responsibility of the Secretary-General of the OECD. The opinions expressed and arguments employed herein do not necessarily reflect the official views of OECD member countries.

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ACCESS TO JUSTICE AND THE COVID-19 PANDEMIC © OECD/ LAW & JUSTICE FOUNDATION OF NEW SOUTH WALES 2020